Complainant

Respondent

Parties

Kevin  Kelly

KCS Logistics & Storage Limited

Representatives

Charles J O' Connor - Charles J O'Connor & Co.

 Mark Hassett, James O’Brien & Co.

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00058568-001

30/08/2023

The Complainant commenced his employment with the Respondent in February 2017. His employment terminated on 7 April 2023. At the time of termination, the Complainant was paid €602.48 net weekly.

On 30 August 2023, the Complainant referred his claim to the Director General of the WRC alleging that he had to leave his job due to the conduct of his employer or others at work.

The Respondent rejects the claim.

Mr O’Connor, on behalf of the Complainant submits as follows.

The Respondent was aware of the Complainant’s condition. In March 2023, the Respondent decided to change the Complainant’s work routine. At that stage, the Complainant worked mainly in the chill area which was less severe on his back. The Complainant advised the Respondent of his difficulties. The Complainant was the most senior employee and due to his health issues, he wished to remain in the chill area.

When the Complainant expressed his concerns, he was asked to work the rota for two weeks, he agreed. The Complainant submits that during the telephone conversation when he was asked if he would return to work, he indicated his concerns regarding his back. He submits that other employees were left in the same locations and new staff were permitted to work in the locations he wanted to work.

It was suggested that the Complainant was on medications at the time of his resignation and he was not in a state to make decisions.

Summary of direct evidence and cross-examination of the Complainant

The Complainant said that any extra weight would exacerbate his back pain. He said that he was moved around but worked for a couple of months in the chill area.

The Complainant said that he met with the Warehouse Manager and the Supervisor on 27 March 2023. He did not say anything about his back to either the Warehouse Manager or to the Supervisor but he knew he could not be moving from one area to the other. He was one of the most senior employees.

On 30 March 2023, he told the Respondent that he would work the rota for two weeks.

The Complainant did not dispute the chain of events regarding the texts and calls as outlined in the Respondent’s submission.

The Complainant said that he was on antibiotics at the time. He was told that he would have to come back to the same job and the Complainant said he would not.

The Complainant said that it was not appropriate for the Respondent to contact him asking when he was coming back during his sick leave. He said that he was on medications when the HR Manager contacted him. He was not asked to return to the office to discuss the matter with the HR Manager. There was no communication from the Respondent to discuss his resignation. Nobody inquired how he was.

In cross-examination, the Complainant confirmed that he moved to the new building in October 2022 after some 2 years in the old one. He agreed that the new building was much bigger, a state-of-the-art building.

The Complainant confirmed that in the old building he worked in all three areas but mostly in dry and frozen areas. He agreed that the heaviest items are in the dry area.

The Complainant agreed that, after the move in October 2022, new employees were brough in and there was a period of adjustment. The Complainant confirmed that he did work in the frozen area (every Friday).

The Complainant confirmed that on 22 March 2023 he wanted to give his notice to the Warehouse Manager who asked him to reconsider. The Warehouse Manager told him they would meet on 27 March 2023 to discuss the matter. The Complainant met the Warehouse Manager and the Supervisor on 27 March 2023. He agreed that it was explained to him that all employees would work in all areas. He confirmed that he did not mention the issue with his back at the time.

The Complainant confirmed that he delivered a medical cert for the period from 31 March to 7 April 2024.

It was put to the Complainant that he received a text message on 7 April 2023 from the Respondent. It was put to the Complainant that it was hardly unreasonable for the Respondent to text him to check if he was returning to work.

The Complainant confirmed that he received various policies, including a grievance policy. He said that he probably read it at some stage. He confirmed that he did not raise a grievance.

In reply to the questions from the Adjudication Officer, the Complainant confirmed that, after he received the letter of 28 April 2023, he did not contact the Respondent to retract his resignation. He confirmed that he knew what he was doing. It was put to the Complainant that his representative seemed to suggest that the Complainant was on medications and not in the right state of mind. The Complainant said that he knew what he was doing.

Loss mitigation

The Complainant said that, following the termination of his employment he was sick and received illness benefit, he was not sure what the exact dates were. He exhibited a medical certificate until 16 April 2023.

The Complainant said that he tried to find a new job. The Complainant said that he secured new employment from 3 July 2023 in the construction industry, which entailed a salary higher than what he was paid by the Respondent.

The Complainant was given the opportunity to furnish, post-hearing, evidence of his attempts to mitigate his loss. On 12 June 2024, the WRC received correspondence outlining the Complainant’s attempts to secure new employment. Copies of the Complainant’s illness benefit documentation were also included. The Complainant remained unwell and in receipt of the illness benefit from 31 March until 6 July 2023.

The Complainant commenced employment with the Respondent on 13 February 2017. He was originally employed as a rigid truck driver and his responsibilities included delivering pre-order products to relevant customers and collection of money from customers and ensuring customer dockets balance with money received. He was based at the Respondent’s offices in Camas, Newcastle West, Co. Limerick.

On 25 September 2020, the following documents were issued to the Complainant: Staff Handbook, policies regarding equality, dignity, bullying and harassment, disciplinary and grievance, IT policy, safety policy and quality policy. A copy of the Complainant’s signed acceptance and copies of the above mentioned polices were exhibited at the hearing.

A role became available in the warehouse and the Complainant transferred to a new role of Warehouse Operative. In this role, his responsibilities included receiving goods in, picking ambient, chilled and frozen goods and checking orders for goods out in a cold storage environment, operating the forklift and maintaining the warehouse and yard. He alternated working between the frozen, chilled and ambient goods area of the warehouse. The goods that he picked ranged in weight from approximately 5kg to 25kg. These weights were applicable in all areas of the warehouse. These work practices were in place in the old premises at Cunningham Foods, Camas, Newcastle West, Co Limerick and continued with the move to the new premises in KCS Logistics & Storage, Kantoher Business Park, Ballagh, Co. Limerick.

On 4 January 2021, the Complainant attended an appointment with Employment Health Advisors as he was referred by the Respondent for an occupational health assessment because he stated that he had hurt his back at home. The recommendation was that he was “unfit for normal or modified duty”.

On 18 February 2021, the Complainant attended a follow up appointment with Employment Health Advisors. The recommendation was that he was “fit to attempt to return to normal duty”.

The Complainant stated in his complaint form that his Revenue record shows his employment start date as 4 February 2022. The Complainant’s employment transferred from Cunningham Foods Limerick Ltd. (cessation date 31 December 2021) to KCS Logistics & Storage Ltd. (start date 1 January 2022), as per the Respondent’s Revenue submissions. There were no changes to the Complainant’s terms and conditions of employment or to his service date as a result of this transfer. The transfer took place as result of an internal group restructure. Cunningham Foods is part of the Mertonbury Group and KCS Logistics & Storage Ltd. is a connected company by virtue of common shareholders and directors.

In October 2022, the Respondent moved a newly built much larger premises a short distance away to Kantoher Business Park, Ballagh, Co. Limerick. In the new premises, all employees alternated working between the frozen, chilled and ambient goods area of the warehouse as in the old premises. The Complainant’s duties remained the same. This included picking ambient, chilled and frozen goods. The goods that he picked ranged in weight from approximately 5kg to 25kg. These weights were applicable in all areas of the warehouse.

On 23 March 2023, the Complainant attended a training course (in-house) including manual handling, overview of policies and warehouse specific training. Copies of the training records and certificate were exhibited at the hearing.

Communication with the Warehouse Manager and the Warehouse Supervisor.

On 22 March 2023, the Warehouse Manager received a call from the Complainant, where the Complainant said he would not work in the freezer and would only work in the chill. The Warehouse Manager asked him if there was any particular reason for this, to which he replied, “it’s not for me” and he then threatened to hand in his two-week notice. The Warehouse Manager told him that the last thing the Respondent wanted was his two weeks’ notice as the Respondent did not want him to leave. The Manager also said  that he was working in Dublin for a couple of days but would meet the Complainant on site the following Monday to discuss properly.

On 27 March 2023, the Warehouse Manager and the Warehouse Supervisor met with the Complainant to discuss his concerns. It was explained to him that all warehouse employees rotate their work to do their fair share of work in the freezer, chilled and ambient as had always been the case. This was to ensure a fair and equal workload to all warehouse employees. The Complainant said that he did not want to work in the freezer because he was here 8 years, and he deserved the right to work in the chill. He accused the Respondent of treating new employees, only in the door a wet week, better than him and others. He kept dragging another employee’s name into the conversation. The Warehouse Manager asked him several times to speak only for himself and to leave other employees out of it and explained that if they had any issues they could come to the management themselves. They tried to reason with the Complainant and asked him if he would continue to work for a couple of weeks. He again, threatened to give his two weeks’ notice.

On 31 March 2023, the Warehouse Manager received a text message from the Complainant at 1.22pm. (the Complainant’s shift starts at 4pm on Fridays). His message said, “Sorry Rory won’t make it in this evening I am f*****g crippled today”.

On 3 April 2023, the Warehouse Manager received a text message from the Complainant at 4.17pm (the Complainant’s shift starts at 6pm). His message said, “will be off for the week have a cert”. A medical certificate was received from him dated 3 April 2023 for 31 March 2023 to 7 April 2023 inclusive.

On 7 April 2023, the Warehouse Manager sent the Complainant a message to see if he would be returning to work the following week. The Complainant rang the Warehouse Manager and asked if the Respondent was still going ahead with the rota. He said he would only come back if he could work in the chill and would not work in the freezer. The Warehouse Manager told him he would call him back as he was busy at the time. The Warehouse Manager rang him back and advised that the Respondent was continuing with the usual rota. The Complainant then said that he would finish up employment. The Warehouse Manager asked if the Complainant was going to work his notice period and he said that he was not and that he wanted to get paid for the week he was off with the cert.

Communication with the HR Manager

On 10 April 2023, the HR Manager rang the Complainant to advise him of the holiday pay that he would receive and when he would get his final payslip. He didn’t have any queries and said, “ok thanks”.

On 11 April 2023, the Complainant rang the HR Manager enquiring about pay for the previous week when he was on sick leave and he said that he had got injured at work. The HR Manager said she would check and call him back

The HR Manager called the Complainant back that day to advise him that he wasn’t eligible for sick pay and that the Respondent had no reported incident from him of anything that happened at work, however the Respondent agreed to pay him for that week that he provided a medical certificate for. He said “ok” and he had no other questions.

The Complainant was paid for the week off and paid for accrued annual leave.

In his WRC complaint form, the Complainant states that his leave date was 30 March 2023. However this was his last day worked and as he received the additional weeks’ pay, his leave date was 7 April 2023.

On 21 April 2023, the Complainant sent correspondence by post to the HR Manager which contained medical certificates for dates after the Complainant had left employment with the Respondent, an Illness and Injury Benefit Form from the Department of Social Protection and a note included asking for the form to be completed.

On 28 April 2023, the HR Manager replied to the Complainant by post explaining that as he had resigned from employment, the Respondent was not in a position to complete the employer section of the form. The medical certificates and Injury and Illness Benefit form along with the letter were returned to him by registered post.

Summary of direct evidence and cross-examination of Mr Crowley, Warehouse Manager

Mr Crowley said that the new building is ten times the size of the old one. There was a period of adjustment after the move.

Mr Crowley said that the Complainant worked Sunday to Thursday. The Complainant did not want to work on Sunday and he was needed on Friday so the Complainant’s shifts changed to Monday to Friday. He worked in the chill area from Monday to Thursday and in the freezer on Fridays.

Mr Crowley said that he tried to have each staff member in each area, so each had fair share. He said that the freezer was the most uncomfortable.

Mr Crowley said that he met with the Complainant in his office. He explained that rationale behind the moving of the staff. The Complainant did not mention his back. Mr Crowley said that he moved to Limerick in February 2022 and he was not aware of the Complainant’s previous difficulties with his back.

Mr Crowley said that the Complainant worked 2 days and then said that he was “crippled”. There was no contact from the Complainant until the text on Friday. Mr Crowley said that he was busy and told the Complainant that they would talk on Monday. The Complainant asked him if the Respondent was continuing with the rota, he confirmed. The Complainant then said he would not be back.

In cross-examination. Mr Crowley confirmed that he was not aware of the Complainant’s difficulties with his back. He confirmed that he was aware that the Complainant was one of the longest serving employees.

Mr Crowley was asked why he did not call the Complainant back after he had resigned to talk to him. Mr Crowley said that the Complainant was very clear that he would not come back. Mr Crowley was not aware that the Complainant was on medications. He was very clear he had no interest in returning to work.

Mr Crowley confirmed that he accepted the Complainant’s verbal resignation. Mr Crowley was asked why he would not have advised the Complainant to talk to his wife or/and children. Mr Crowley said that the Complainant was clear what he was doing.  Mr Crowley said that it was their third conversation on it. He told the Complainant previously at the meeting and on the call to consider what he was doing.

Summary of direct evidence and cross-examination of Ms Dennehy, HR Manager

Ms Dennehy said that she had a brief telephone conversation with the Complainant on 10 April 2023 and then on 11 April 2023.

Ms Dennehy said that on 21 April 2023, she received forms regarding illness benefit from the Complainant. As he ceased his employment, she wrote to him on 28 April 2023 explaining the situation.

In cross-examination, Ms Dennehy was asked if, during the telephone conversation on 10 April 2023 she asked the Complainant to reconsider his decision. She said that she did not. She said that she was aware that the Warehouse Manager had tried to persuade the Complainant to return to work but he did not want to.

The Complainant alleges that had to leave his job because of the conduct of the Respondent. The Respondent rejects the claim.

Section 1 of the Unfair Dismissals Act provides the following definition of “dismissal”:

“dismissal”, in relation to an employee, means—

“(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.”

The term “constructive” dismissal is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to that part of the definition Section 1(b) of the Act (as quoted above).

As the Complainant is claiming constructive dismissal, the fact of dismissal is in dispute between the parties, and in such circumstances, the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify terminating her employment.

The legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd v Sharp [1978] IRLR 332.  It comprises of two tests, referred to as the “contract” and the “reasonableness” tests. It summarised the “contract test” as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.” 

An employee may be entitled to terminate the contract where the employer engages in conduct which results in a fundamental breach of the contract, or which indicates that the employer no longer intends to be bound by the terms of the contract.

The reasonableness test “. . . asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer and, if so, she is justified in leaving . . . .” (Cedarglade Limited v Tina Hilban UDD 1843). Thus, it may be reasonable for an employee to terminate the contract because of the conduct of the employer even if the employer had adhered to the contractual terms.

A general term is implied into every contract of employment that the employer will not impair the ‘trust and confidence’ of the employee. In Malik v Bank of Credit and Commerce International [1997] 3 All ER 1 (cited in Berber v Dunnes Stores [2009] IESC 10), Lord Stein stated:

“The implied obligation extends to any conduct by the employer likely to destroy or seriously damage the relationship of trust or confidence between employer and employee”.

In Malik the threshold was held to be high: it must “destroy or seriously damage” the trust between the parties. However, it is not essential that the employer be aware of the effect of the conduct. Nor that they intended such an effect. 

Similarly in Joyce v Brothers of Charity Services [2009] ELR 328, the Employment Appeals Tribunal (EAT) held that the conduct “. . . cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and the employee”.

In Berber v Dunnes Stores Ltd [2009] IESC 10, it was held by the Supreme Court that in determining if there has been a breach in the implied contractual term of mutual trust and confidence, the conduct of both the employer and employee must be examined as a whole, and the cumulative effect of the conduct must be looked at. The conduct of the employer must be unreasonable and without proper cause and its effect on the employee must be viewed objectively, reasonably, and sensibly to determine if it is such that the employee can no longer be expected to tolerate the behaviour.

“There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee.”

Regardless of whichever test is applied, the threshold for constructive dismissal is very high (Nicola Coffey v Connect Family Resource Centre Ltd, UD 1126/2014 and Calderon & Others v Lootah & Others, UD1219/2013).

It is well settled law that an employee must make reasonable efforts to bring the grievance to the attention of the employer before resigning. In O’Gorman v Glen Tyre Company Ltd (UD2314/2010), the EAT noted:

“[I]t is crucial in a constructive dismissal case that the claimant informs the employer fully of the complaints being made against him and the employer be given an opportunity to resolve the issues”.

At a minimum the employee will be expected to utilise the company grievance procedure. In Conway v Ulster Bank Ltd UD 474/1981, the EAT noted that “it is not for the Tribunal to say whether this procedure would have produced a decision more favourable . . . but it is possible”.

In Beatty v Bayside Supermarkets UD 142/1987 the Employment Appeals Tribunal held that;-

“…it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited UD 474/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.

In Travers v MBNA Ireland Limited, (UD720/2006), the Complainant’s role was changed by the employer in a manner which was “not in keeping with the contract of employment”. While the Complainant in this matter initiated the company’s internal grievance procedures, he resigned without lodging a final appeal. In this instance the Tribunal found that,

“…the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case”

and,

“…in constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

It is also well settled law that an employee may be justified in resigning without utilising the grievance procedure in some circumstances. In Mr O v An Employer (no. 2) [2005] 16 ELR 132, the court accepted:

“. . . in normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. However, there is authority for the proposition that this is not a fixed or universally applicable rule and there can be situations in which a failure to give prior formal notice of grievance will not be fatal”.  

As the authorities cited above clearly outline, in order to be successful in a complaint of constructive dismissal, a Complainant must demonstrate substantial engagement with the Respondent’s internal grievance procedures prior to resigning their employment.

In essence, in a constructive dismissal claim the burden of proof rests with the employee, who must prove that their decision to resign was both justified and reasonable. In effect, the employee must demonstrate that they had no option but to resign. The notion places a very high burden of proof on an employee to demonstrate that he acted reasonably and had exhausted all internal procedures in an attempt to resolve his grievance with his employer.

In the present case, the Complainant appears to have been unhappy with the work arrangements, in particular with the rotation of shifts between three different areas of the business.

There was no dispute that the Respondent had an established grievance procedure in place. The Complainant confirmed the receipt of same. He confirmed that he probably read the document at some stage. However, the Complainant also confirmed that he did not invoke the procedure prior to his resignation.

Having regard to the foregoing, it cannot be said that the Complainant has established any engagement with the internal procedures.

Therefore, I must conclude that the standard of reasonableness required to substantiate a claim of constructive dismissal, has not been met where the Complainant failed to exhaust the procedures available to him before taking the step to resign, thereby not providing the Respondent with an opportunity to address his grievance in a proper manner.

I find that the Complainant has failed to establish that the Respondent’s conduct was unreasonable or was such that he had no option but to resign his position or it was such as to show that it no longer intended to be bound by one or more of the essential terms of his contract. I am, therefore, satisfied that the Complainant was not constructively dismissed, and he resigned from his employment of his own volition.

I find that the Complainant was not unfairly dismissed and, accordingly, this complaint is not well founded.

Constructive dismissal